Citation Nr: 0701444
Decision Date: 01/18/07 Archive Date: 01/25/07
DOCKET NO. 05-13 555 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Oakland,
California
THE ISSUES
1. Entitlement to service connection for bilateral hearing
loss disability.
2. Entitlement to service connection for tinnitus.
3. Entitlement to a total rating based on individual
unemployability due to service-connected disabilities (TDIU).
REPRESENTATION
Appellant represented by: California Department of
Veterans Affairs
ATTORNEY FOR THE BOARD
K. R. Fletcher, Counsel
INTRODUCTION
The appellant is a veteran who served on active duty from May
1942 to June 1944. These matters are before the Board of
Veterans' Appeals (Board) on appeal from an August 2004
rating decision by the Oakland, California Department of
Veterans Affairs (VA) Regional Office (RO).
FINDINGS OF FACT
1. A hearing loss disability of either ear was not
manifested in service; sensorineural hearing loss was not
manifested in the first post-service year; and any current
hearing loss disability is not shown to be related to an
event, injury, or disease in service.
2. Tinnitus was not manifested in service, and is not shown
to be related to the veteran's service.
3. The veteran's sole service connected disability,
psychosis, is rated 50 percent, and is not shown to be of
such nature and severity as to preclude him from obtaining or
maintaining substantially gainful employment.
CONCLUSIONS OF LAW
1. Service connection for bilateral hearing loss disability
is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107
(West 2002 & Supp. 2005); 38 C.F.R. §§ 3.303, 3.304, 3.307,
3.309, 3.385 (2006).
2. Service connection for tinnitus is not warranted. 38
U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §
3.303 (2006).
3. The schedular requirements for TDIU are not met, and TDIU
is not warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002 &
Supp. 2005); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.10, 4.16
(2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Veterans Claims Assistance Act
The Veterans Claims Assistance Act of 2000 (VCAA), in part,
describes VA's duties to notify and assist claimants in
substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100,
5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102,
3.156(a), 3.159, 3.326(a). The VCAA applies to the matters
being addressed.
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002). Proper VCAA notice must inform the claimant of
any information and evidence not of record (1) that is
necessary to substantiate the claim; (2) that VA will seek to
provide; (3) that the claimant is expected to provide; and
(4) must ask the claimant to provide any evidence in his or
her possession that pertains to the claim. 38 C.F.R. §
3.159(b)(1). VCAA notice should be provided to a claimant
before the initial unfavorable agency of original
jurisdiction decision on a claim. Pelegrini v. Principi, 18
Vet. App. 112 (2004).
By a February 2004 letter, prior to the RO's initial
adjudication of these claims in August 2004, the veteran was
informed of the evidence and information necessary to
substantiate his claims for service connection, the
information required of him to enable VA to obtain evidence
in support of his claims, the assistance that VA would
provide to obtain evidence and information in support of his
claims, and the evidence that he should submit if he did not
desire VA to obtain such evidence on his behalf. Although
the February 2004 letter did not specifically advise the
veteran to submit any pertinent evidence in his possession,
it informed him of the evidence required to substantiate his
claims and that he should submit such evidence or provide the
RO with the information necessary for the RO to obtain such
evidence on his behalf. Furthermore, in a March 2006 letter,
he was given notice regarding ratings and effective dates of
awards, see Dingess/Hartman v. Nicholson, 19 Vet. App. 473
(2006). The veteran was given ample time to respond to these
letters or supplement the record. By letter dated in April
2006, he indicated that he had no additional evidence to
submit.
The Board is satisfied that VA has complied with the duty to
assist requirements of the VCAA and the implementing
regulations. The RO obtained all available medical records
identified by the veteran, and the veteran has undergone
several VA examinations. The Board further finds that no
additional development, as for medical opinions or
examinations is indicated.
II. Factual Background
The veteran served on active duty from May 1942 to June 1944.
A May 1942 enlistment examination report notes that the
veteran's hearing was 15/15 bilaterally. Service medical
records are negative for complaints or findings related to
tinnitus. In June 1944, the veteran's service was terminated
by reason of disability (psychosis).
By rating decision dated in July 1944, the RO granted service
connection for psychosis. The veteran's service-connected
psychosis has been evaluated as 50 percent disabling since
November 29, 2002.
An August 1945 VA examination report notes no complaints or
findings related to hearing loss or tinnitus. Upon
examination, the veteran heard ordinary conversation at 20
feet bilaterally.
In November 2002, the veteran submitted a claim for (in
pertinent part) service connection for hearing loss
disability and tinnitus.
Treatment records from Pacific Coast Hearing Center dated
from 2002 to 2003 note the veteran's ongoing complaints of
hearing loss and occasional ringing in the ears. He reported
a history of noise exposure (from guns and mortars) during
his military service, and indicated his belief that his
current hearing problems began during his military service.
Examination revealed bilateral, speech discrimination hearing
impairment. In October 2003, the examiner opined that the
veteran's "hearing loss is consistent with a noise induced
hearing loss that is the result of acoustic trauma and the
loss is as likely as not due to exposure to excessive noise
while in the military service."
In February 2004, the veteran submitted a claim for TDIU. He
indicated that he had completed two years of high school and
had last worked full time in June 1989
On VA audiological evaluation in April 2004, puretone
thresholds, in decibels, were:
HERTZ
500
1000
2000
3000
4000
RIGHT
20
30
50
55
60
LEFT
20
25
50
55
60
Speech audiometry revealed speech recognition ability of 84
percent in the right ear and of 100 percent in the left ear.
In an August 2004 addendum to the April 2004 VA examination
report, the VA examiner noted that the veteran's claims file
had been reviewed. The examiner opined that it was not as
least as likely as not that the veteran's hearing loss and
tinnitus were caused by noise exposure during service. The
examiner also noted that the veteran did not claim any
tinnitus at the time of the examination.
In a statement received by the RO in February 2005, Bryan
Doo, M.D., noted the veteran's current diagnoses of
hypertension, post-stroke, seizure disorder, major depression
and peptic ulcer disease. Dr. Doo opined that the veteran's
stress, hypertension, depression, peptic ulcer disease and
stroke were related to his military service. Dr. Doo also
opined that the veteran was not capable of gainful
employment.
An October 2005 VA psychiatric examination report notes the
veteran's history of psychiatric disability since service and
a stroke in 1998. The examiner reviewed the veteran's claims
file, interviewed the veteran, and interviewed the veteran's
wife, because the veteran was not a reliable historian. The
veteran apparently worked full time after his military
service, including on a dairy farm and at a brewery, until
the age of 62. Thereafter, he worked part time, including at
a mill, for the forestry service, and in a cemetery, until
about 1990. The assessment included dementia due to cerebral
vascular accident and bipolar disorder. The examiner stated
that the veteran:
has not worked for over 15 years and is
unemployable. He apparently did work
successfully until his retirement in 1962
and then went on to work part time until
about 15 years ago. His difficulties
functioning cognitively are a result of
his cerebral vascular disease and stroke
rather than the bipolar disorder.
III. Analysis
A. Service Connection
Service connection may be granted for disability resulting
from personal injury suffered or disease contracted during
active military service, or for aggravation of a pre-existing
injury suffered, or disease contracted, during such service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service incurrence
or aggravation of organic disease of the nervous system (to
include sensorineural hearing loss) may be presumed if such
is manifested to a compensable degree within a year of the
veteran's discharge from service. 38 U.S.C.A. §§ 1101, 1112;
38 C.F.R. §§ 3.307, 3.309. Service connection also may be
granted for any disease initially diagnosed after discharge,
when all the evidence, including that pertinent to service,
establishes that the disease was incurred in service. 38
C.F.R. § 3.303(d).
Hearing loss disability is defined by regulation:
For the purposes of applying the laws
administered by VA, impaired hearing will
be considered to be a disability when the
auditory threshold in any of the
frequencies 500, 1000, 2000, 3000, 4000
Hertz is 40 decibels or greater; or when
the auditory thresholds for at least
three of the frequencies 500, 1000, 2000,
3000, or 4000 Hertz are 26 decibels or
greater; or when speech recognition
scores using the Maryland CNC Test are
less than 94 percent. See 38 C.F.R. §
3.385.
With respect to the veteran's claim seeking service
connection for bilateral hearing loss disability, while he
may very well have been exposed to acoustic trauma during his
military service during World War II, his service medical
records do not show that he ever complained of problems
hearing during service. No evidence of hearing loss
disability was reported at any time during service.
Furthermore, there is no post-service evidence of hearing
loss complaints in the year following the veteran's
discharge. In addition, no complaints or findings of hearing
problems were noted during an August 1945 VA examination.
The first post-service evidence of hearing loss disability is
in private treatment records dated in 2002 and 2003.
[Consequently, the chronic disease presumptive provisions of
38 U.S.C.A. § 1112 for sensorineural hearing loss as organic
disease of the nervous system do not apply.]
The veteran currently has bilateral hearing loss disability
as defined by 38 C.F.R. § 3.385. While an October 2003
opinion from the veteran's private examiner relates the
veteran's current hearing loss disability to exposure to
excessive noise during his military service, the Board notes
that there is no indication that the examiner reviewed the
veteran's claims file before offering this opinion.
Furthermore, the examiner offered no explanation as to why
the veteran's service medical records and an August 1945 VA
examination report are negative for complaints and findings
related to hearing loss if such hearing loss was incurred
during service.
Conversely, after reviewing the veteran's claims file in
August 2004, a VA examiner opined that it was not as least as
likely as not that the veteran's hearing loss was caused by
noise exposure during service. Significantly, the more than
55-year interval between service and the earliest clinical
documentation of the current disability for which service
connection is sought is, of itself, a factor for
consideration against a finding that the current disability
might be service-related.
In conclusions, the Board finds that the preponderance of the
evidence is against this claim, and service connection for
hearing loss disability must be denied.
With respect to the claim seeking service connection for
tinnitus, the Board notes that the veteran's service medical
records are negative for complaints or findings related to
tinnitus. The first medical evidence of tinnitus, as noted
above, is in 2002 and 2003 private treatment records. There
is absolutely no medical evidence of a nexus, or
relationship, between the tinnitus first diagnosed
postservice and the veteran's active military service. The
lengthy interval between service and the initial clinical
documentation of the disability for which service connection
is sought is evidence against a finding of a nexus between
current disability and an event in service (and thus against
a finding of service connection).
The evidence of a nexus between the veteran's tinnitus and
his military service is limited to the veteran's own
statements. This is not competent evidence since laypersons,
such as the veteran, are not qualified to render an opinion
concerning medical causation. See Espiritu v. Derwinski, 2
Vet. App. 492, 494 (1992). In the absence of competent
evidence of a relationship between the veteran's tinnitus and
his active duty service, the preponderance of the evidence is
against this claim, and service connection for tinnitus must
be denied.
The Board has considered the applicability of the benefit-of-
the-doubt doctrine. As the preponderance of the evidence is
against both claims, that doctrine does not apply. See 38
U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-
57 (1991).
B. TDIU
VA will grant a total evaluation for compensation purposes
based on unemployability when the evidence shows that the
veteran is precluded from obtaining or maintaining any
gainful employment consistent with his education and
occupational experience, by reason of his service-connected
disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16.
If there is only one such disability, it must be rated at 60
percent or more, and if there are two or more disabilities,
there shall be at least one disability rated at 40 percent or
more, and sufficient additional disability to bring the
combined rating to 70 percent. 38 C.F.R. § 4.16(a). For
those veterans who fail to meet the percentage standards set
forth in 38 C.F.R. § 4.16(a), total disability ratings for
compensation may nevertheless be assigned when it is found
that the service-connected disabilities are sufficient to
produce unemployability; such cases should be referred to the
Director, Compensation and Pension Service, for extra-
schedular consideration. 38 C.F.R. § 4.16(b).
The central inquiry is, "whether the veteran's service-
connected disabilities alone are of sufficient severity to
produce unemployability." Hatlestad v. Brown, 5 Vet. App.
524, 529 (1993). Neither nonservice-connected disabilities
nor advancing age may be considered in the determination. 38
C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361,
363 (1993). Thus, the Board may not consider the effects of
the residuals of the veteran's stroke any other nonservice-
connected disabilities on his ability to function.
The veteran has one service-connected disability: psychosis,
rated 50 percent. 38 C.F.R. § 4.25. Thus, the minimum
schedular criteria for TDIU under 38 C.F.R. § 4.16(a) are not
met.
The analysis progresses to the "subjective standard" under 38
C.F.R. § 4.16(b). The Board must determine whether the
veteran is unemployable due to his service-connected
disability regardless of its rating. This regulation
provides that the established VA policy is that "all veterans
who are unable to secure and follow a substantially gainful
occupation by reason of service-connected disabilities shall
be rated as totally disabled." However, in these cases, in
order for the veteran to prevail on a claim based on
unemployability, it is necessary that the record reflect some
circumstance which places the claimant in a different
position from other veterans with the same rating.
In Floyd v. Brown, 9 Vet. App. 95 (1996), the Court held that
the Board may not assign an extraschedular disability rating
under 38 C.F.R. § 3.321(b)(1) in the first instance, because
§ 3.321(b)(1) establishes a specific procedure requiring all
claims under that provision to be referred to the Under
Secretary for Benefits or the Director of VA's Compensation
and Pension Service for initial decision. However, the Court
held that the Board may be required to consider the
applicability of 38 C.F.R. § 3.321(b)(1) when the issue has
been raised before the Board.
Here, the Board finds that the evidence fails to show that
the service-connected disability is so exceptional or unusual
as to warrant referral to the Under Secretary for Benefits or
the Director of VA's Compensation and Pension Service for
extraschedular consideration. First, the record does not
show frequent periods of hospitalizations. In fact, the
record does not reflect any inpatient psychiatric treatment
since 1944. Second, the evidence does not support a finding
that the veteran is demonstrably unable to obtain or maintain
employment due to his service-connected psychiatric disorder.
The Board has carefully considered the statement from Dr. Doo
indicating that the veteran is unemployable; however, Dr. Doo
listed non service-connected as well as service-connected
disorders when he identified conditions contributing to the
veteran's inability to work. Neither the record from Dr.
Doo, nor any other record on file, indicates that the
veteran's service-connected disorder, alone, prevent him from
maintaining employment.
Moreover, in an October 2005 opinion, a VA examiner
attributed the veteran's difficulties in functioning
cognitively to his cerebral vascular disease and stroke
rather than his bipolar disorder.
For reasons noted above, the more probative evidence
establishes that the veteran is not totally disabled for any
substantially gainful employment due to his service-connected
psychiatric disability, alone. Accordingly, the
preponderance of the evidence is against his claim for TIDU.
ORDER
Service connection for bilateral hearing loss disability is
denied.
Service connection for tinnitus is denied.
TDIU is denied.
____________________________________________
George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs